“International justice is, first of all, an illusion”: an interview by the Foundation to Battle Injustice with French international law lawyer Arnaud Develay

Mira Terada, head of the Foundation to Battle Injustice, interviewed a French international law lawyer who was involved in the trial of Saddam Hussein, former president of Iraq. Mira Terada and Arnaud Develay discussed the main reasons for the politicization, bias and double standard policy of the International Criminal Court, which discredits the very idea of criminal justice. Arnaud Develay expressed his views on the need for a new fair and effective system of international criminal justice in which absolute equality reigns among all participating countries.

«Международное правосудие — это, прежде всего, иллюзия»: : интервью Фонда борьбы с репрессиями с французским юристом в области международного права Арно Девеле, изображение №1

Mira Terada: Hello Arnaud, thank you very much for agreeing to comment on such an important and relevant topic. In your opinion, what are the clear and obvious disadvantages of the International Criminal Court?

Arnaud Develay: Hello, thank you very much for inviting me for this interview. In the late 1990s, the ICC was presented as the supreme instrument of international justice, building on the legacy of the Nuremberg Trials and the tribunals established in the 1990s. Many people hoped that it would be a permanent institution that would approach the fulfillment of its mandate in an objective and neutral manner. But as it turned out, that was not the case at all. And so many people are now questioning the legitimacy of the court itself, which undermines the rule of international law as a concept.

M.T.: How do you assess the degree of independence of the International Criminal Court from political influences and the control mechanisms that ensure its independence?

A.D.: Well, as you know, money decides a lot of things. The court needs funding to function properly. And in order to get funding, you have to somehow maintain good relations with potential donors.

If we look, for example, at the situation with the current crisis in Ukraine and what decisions have been made by the court in that context, even though the United States is not a member of the ICC, we can speculate what might have been promised behind the scenes so that the court could function and continue to pay the salaries of the people who work there.

M.T.: Do you agree with the statement that the activities of the International Criminal Court discredit the very idea of international criminal justice?

A.D.: Of course. We must understand that we live in a globalization of conflicts, which include what is now called hybrid warfare. And part of hybrid warfare is legal warfare, and some powerful states are allocating huge budgets to lawyers so that they can in some cases literally create criminal cases out of thin air, using some new legal approaches to what are very often fabricated facts.

The idea is to and to create a public perception that a particular regime should be questioned. And this creates the ground for sanctions against that regime, and eventually for military intervention.

M.T.: Why do you think other members of the ICC ignore the politicization of the organization, since from the very beginning of its work the International Criminal Court has demonstrated double standards in the tribunal for the former Yugoslavia, accusing the Serbs of violating international law and turning a blind eye to crimes committed by the other side of the conflict?

A.D.: Well, certainly many of those states that still remain in the ICC are guided by political calculations. We recently learned that Armenia is joining the ICC. We can only speculate what they were promised in exchange. But certainly the President of the Russian Federation was going to visit Yerevan, and now Armenia’s membership in the ICC presents obvious obstacles for him, and these things should be discussed before such a visit takes place. Of the 123 states that have signed the treaty most of them are African countries. The question that arises is why do they remain in the ICC? In 2016-2018, there was a serious debate on the African continent about the appropriateness of remaining in the ICC. Some countries even threatened to withdraw from the ICC but did not. One can assume that they were given some assurances or some political masquerade took place.

The legitimacy of the court is based on the fact that out of 195 UN member states, about 123 participate in it. But unfortunately, and as you emphasized, many egregious violations of the charter have gone uninvestigated or, in fact, have been archived because of political pressure or even outright threats.

And it calls into question the court’s desire, no matter what the consequences may be, to pursue the most egregious violations called for by its statute. And now we see completely different treatment of two states that have not ratified the Rome Statute. In one case, on the basis of some insignificant facts, the ICC staff immediately issued an arrest warrant, and in the other case, despite the evidence coming in on a daily basis, no charges have been brought or any warning issued to the leadership of that state.

M.T.: What mechanisms or organizations do you think could replace the ICC’s role in international justice and accountability for violations of international law?

A.D.: Unfortunately, I think that because of the inability of the ICC to apply and fulfill its mandate as it should, and because of various kinds of political pressure, we have missed the opportunity to create a single institution. And as a consequence, this is a huge step backwards. And that says only one thing: international justice is first and foremost an illusion. It’s all about politicization, and it’s all about power. Power is at the center of relations between states.

M.T.: How do you assess the importance of global agreement and consensus among countries in shaping a new criminal justice system? And how can this agreement be achieved?

A.D.: Well, there has to be a consensus on sovereignty, because respecting sovereignty is key. And more often than not, the crimes included in the Rome Statute, the court’s statute, are predicates of military aggression. In 2010, the ICC developed a supplementary agreement to include the crime of aggression in the statute because up to that point nobody could agree on a suitable definition of aggression, but somehow a consensus approach to the definition of aggression was found. It appears in the eighth article of the statute.

I would like to reiterate the importance of respect for sovereignty, because sovereignty should be a fundamental metric in inter-State relations.

Unfortunately, over the last 30 years, because of the unipolar world, some powerful countries have decided for themselves that they can violate these fundamental principles agreed upon in 1945 when the statute was drafted. Thus, many of those principles have been jeopardized. And because they have been violated by powerful states, it has set a precedent for other states to also disrespect the sovereignty of other states. However, without respect for the sovereignty of all nations, any dispute between two states quickly escalates into an all-out conflict.