The West has deployed the International Criminal Court in the US/NATO proxy war with Russia in Ukraine.  

On March 17, the International Criminal Court (ICC) indicted and issued arrest warrants for Russian President Vladimir Putin and Russian Commissioner for Children’s Rights Maria Lvova-Belova. They are the first and only white people to be indicted by the court. All 44 of those previously indicted have been Africans.

Neither Russia, China, nor the US have accepted the court’s jurisdiction. The US Congress even passed what’s colloquially known as the Hague Invasion Act , which makes it lawful—not internationally, but lawful according to US statute—for the US to invade the Netherlands to save any US official, service member, or citizen, or those of any of its allies, should they ever be brought before the International Criminal Court in The Hague, no matter how heinous or well-documented the crime.

The indictments of Putin and Lvova-Belova allege that they were responsible for the abduction and “unlawful deportation” of Ukrainian children to Russia. Defenders of Putin and Lvova-Belova say that the children were just temporarily removed from a war zone where they might have been in danger.

Putin is scheduled to represent Russia at a conference of the BRICS nations—Brazil, Russia, India, China, and South Africa—in South Africa in August. However, the plan has become controversial there because South Africa is a state party to the ICC and might therefore be expected to arrest Putin. Thirty-three African nations are states parties to the court and thereby accept its jurisdiction.

I spoke to David Paul Jacobs, a Canadian attorney who has practiced in international law about the indictment.

ANN GARRISON: David, I think the ICC would be a laughingstock for its racist hypocrisy if there weren’t so many lives lost in the crimes that it considers and fails to consider, but this indictment has the world’s attention and it’s awkward for South Africa. Can you explain South Africa’s legal position as a state party that still accepts the jurisdiction of the court? What does the Rome Statute or any related documents say?

DAVID PAUL JACOBS: The Rome Statute gives the ICC the “authority to make requests to States Parties for cooperation.”  South Africa is a state party to the Rome Statute, although in 2016, South Africa indicated its intention to withdraw from the Statute, and later reversed itself.

The obligation to cooperate with the ICC is tempered by Article 98 of the statute which provides that:

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.”

In this case the “requested State” is South Africa and the “third State” would be Russia.

South Africa’s obligations include the requirements of the African Union’s 2015 resolution granting heads of state immunity from ICC prosecution and the provisions of its domestic law: the Diplomatic Immunities and Privileges Act, 2001.  Many countries have similar enactments to protect their heads of state and diplomatic personnel and reciprocally protect such persons from other states, for obvious and historic reasons. International law recognizes the jurisdictional immunity of a head of state.

The South African government has now granted immunities and privileges under the Diplomatic Immunities and Privileges Act, 2001 for the BRICS meetings to be held in Cape Town in June and August, 2023.

AG: If South Africa were to arrest Putin, Russia would feel obliged to invade South Africa, wouldn’t it?

DPJ: Given the decision of the South African government to apply immunity to the BRICS meetings, the question, thankfully, does not arise.

It is worth noting that the USA, which is not a state party to the Rome Statute, has enacted the American Service-Members’ Protection Act, aka the Hague Invasion Act, prohibiting US cooperation with the Court, and permitting the President to authorize military force to free any US military personnel held by the court.

AG: Thirty-three African nations, including South Africa, are states parties to the court. Given that the Court has indicted 44 Africans and no one from another continent, do you think they should all withdraw from the court?

DPJ:  The African Union has instructed member countries not to cooperate with the ICC.

AG: Regarding the indictment of Putin and Lvova-Belova itself, I know that Ukraine’s bombing of its own Russian-speaking population, its disregard for the Minsk Accords, and perhaps even its desire to join NATO make a moral case for Russia’s invasion of Ukraine, but it’s still a crime of aggression, a violation of Ukraine’s sovereignty, isn’t it?

DPJ: Article 51 of the U.N. Charter provides in part that:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

It has been argued that the right of self-defense includes a right of anticipatory self-defense necessary in the face of overwhelming threats. The decisions of Crimea, the Donbas, etc., to join Russia, and the armed attacks on their territories, ramping up in January 2022, in part provide the bases for such arguments on the part of Russia.  Recall, however, that the NATO attack on Yugoslavia was deemed illegal by the late Antonio Cassese who was a President of the ICC.

The US claimed that its wars on Iraq and Afghanistan were all justified as aid in “self-defence” even though NATO countries were not attacked or threatened prior to the attacks.

AG: Why do you think the court indicted Putin for abducting children but not for invading Ukraine, which would seem to be its primary violation of international law?

DPJ:  That’s not clear. I do not believe that the indictment is yet released, so we do not know the allegations in full. The ICC has complex provisions regarding the crime of aggression, only recently added to its jurisdiction. Regarding the charge, the Russians claim that children without parental or other support, orphans and such, were moved to safety but many have been returned.

AG: David Jacobs, thank you for speaking to Black Agenda Report.

DPJ: Thank you.

Ann Garrison is a Black Agenda Report Contributing Editor based in the San Francisco Bay Area. In 2014, she received the Victoire Ingabire Umuhoza Democracy and Peace Prize  for her reporting on conflict in the African Great Lakes region. She can be reached at ann(at)anngarrison.com. Please help to support her work on Patreon .

David Paul Jacobs is a Canadian attorney practicing in Toronto. He has acted as a defense attorney at the International Criminal Tribunal for Rwanda and writes and lectures on international criminal law, among other things.