I followed the formation of the International Criminal Court (ICC) when the Rome Statute was adopted in the Italian capital in 1998 at the same time when the Khmer Rouge tribunal was being debated in Cambodia, led by a proposal to the UN by Prime Minister Hun Sen.
The ICC was meant to prosecute genocide, war crimes and crimes against humanity, analogous with the Jewish Holocaust, the Cambodian killing fields, Rwandan genocide, the Bosnian genocide, genocide against American Indians, genocide against Australian aborigines and other mass atrocities.
Apparently, what’s happening in Ukraine, although disturbing, is not yet comparable to any of these past crimes. Lowering the ICC to prosecute lighter crimes distract its role to deter and prosecute genocide, inhibit negotiation during wars and restrict dialogues which is a cornerstone of diplomacy.
The ICC’s recent arrest warrant for Russian President Vladimir Putin over the Ukraine conflict also risks the exodus by member states from its 123 membership when they consider that their sovereignty is being overruled by the body, increasingly controlled by politically motivated prosecutors. Thirty-one states have yet to ratify the Rome Statute and now they never would. The Philippines withdrew its memberships in 2019 under former President Rodrigo Duterte when he believed that heavy-handed actions in the war on drug were required to prevent his country from becoming Mexico and Columbia, rotten from within by drug cartels. Violating state sovereignty and diplomatic immunity endangers the state system set up since Westphalia in 1648 to secure European peace.
The likelihood of a global war increases when the head of a nuclear superpower is threatened with arrest. A world war in the nuclear age will lead to nuclear apocalypse. Putin has never been deterred by the West, either by sanctions or the threat of arrest. He threatened a nuclear attack before, and the ICC warrant will likely raise that prospect. If the West continues to isolate him by restricting his travel through arrests, then there is no hope for peace in Ukraine and the suffering of all Ukrainian people will indefinitely continue.
During the Cold War, nuclear deterrence worked on two preconditions. 1) The US and the Soviet Union did not go into direct conflict. Instead, they fought proxy wars in Korea, Afghanistan, Indochina and South America and other places. 2) Neither superpower directly harmed the others’ leaders through arrest, abduction or assassination. Any such act meant a declaration of war.
If the ICC veered away from mass violence for prosecution, they would be overwhelmed by cases to investigate. By issuing an arrest warrant against Putin, Karim Khan is clearly politically motivated. Currently there are 27 ongoing conflicts worldwide, most notably the war in Afghanistan, Yemen, Libya, the Rohingya crisis, Ethiopia, Iraq, Palestine, South Sudan, Central African Republic and others. Children are dying every day through starvation in Yemen. Warring parties within these conflicts can potentially be indicted under the ICC statute if interpreted to cover less serious crimes. The war in Iraq and Afghanistan can also lead to ICC prosecutions.
Conflicts disrupt access to basic services such as food and water, and force people into extreme poverty, with the poorest and the most vulnerable paying the highest price. In addition to taking lives and devastating infrastructure in the short term, conflict and its consequences are profound and enduring, reversing years of UN development achievements.
Cambodian people learnt it the hard ways and have since rebuilt their country together. The current humanitarian crisis in Ukraine may be in the spotlight but there are many conflicts occurring globally that deserve equal support and compassion. Ending these conflicts as soon as possible is more important than prosecution. All available means should be provided to assist and encourage warring parties to resolve conflicts through negotiation.
Kok-Thay Eng is director of the Cambodian Institute for Peace and Development.
The views expressed in this article are solely his own.
