Russian Federation announced at November 16 it will remove its signature from ICC’s founding document. Russia signed in 2000 the Rome Statute but it never ratified. The United States did sign but did not ratify.
The withdrawal has no practical impact and must be seen as a political statement with symbolic significance. This step follows the route taken by Putin to ignore international courts. In December 2015 Russia adopted a law allowing it to overrule judgements from the European Court of Human Rights (ECHR)
“The International Criminal Court has not justified hopes placed upon it and did not become a truly independent and authoritative judicial body,” a spokesperson for the Russian foreign ministry said.
The removal of Russia is likely a response to the ICC announcement at November 15 which stated the situation in Crimea is an international armed conflict between Ukraine and the Russian Federation. This conclusion could result into ICC doing investigation and possibly prosecution of Russian citizen.
The signature of the Rome Statute does not provide ICC jurisdiction on the territory of the state signing nor does it allow ICC to prosecute citizens of the state which signed but not ratified. Signing a treaty creates legal obligation to act in accordance with its object and purpose, such as not to undermine ICC.
So what could be the effect of Russia withdrawal on the prosecution of suspects responsible for the downing of MH17?
ICC stated “will closely follow the progress and findings of the national and international investigations into the shooting down of the Malaysia Airlines MH17 aircraft in July 2014.” (page 25 at source).
Geert-Jan Knoops, a well known Dutch lawyer stated in a Dutch radio program that now Russia witdraws from ICC chances for a condemn of the perpetrators will be limited even more. The international trial of the perpetrators according to Knoops has a slim chance, but that chance is reduced to zero today by Vladimir Putin. “Now Russia is not involved in this form of international law it is unlikely that they will cooperate in a different form of court case. Russia also does not extradict nationals’ .
Dr. Marieke de Hoon does not agree with Knoops. De Hoon is Assistant Professor of International Law at the Transnational Legal Studies department of Vrije Universiteit Amsterdam.
In her paper titled ” Navigating the Legal Horizon. Lawyering the MH17 Disaster” (forthcoming in 2017, available on file upon request) de Hoon states:
The ICC’s Rome Statute encourages the prosecution of international crimes, such as war crimes, in domestic courts. The likely ability and willingness of the Netherlands and/or other states to prosecute domestically, the starting position of deciding where to prosecute should be a domestic criminal system. Establishing a special institute or face the lengthy and complex proceedings of the ICC instead of domestic proceedings should only be considered if there are reasons that render domestic prosecution impossible and the ordeal is hence worthwhile. Given that currently the JIT is investigating with an eye to prosecuting individuals, cases at the ICC would not be admissible
By the statements of De Hoon we can conclude that the route of prosecution by ICC is not a preferred route. In press statements and statements to the Dutch parliament, Dutch government stated that the two options for prosecution are either using domestic law or an international tribunal by JIT members. Prosecution under Dutch domestic law seems by far the most likely route taken.
ICC has never been mentioned by Dutch government officials as a scenario in consideration.
Dutch law allows prosecution in absentia which means the suspects do not have to attend the court in person. Whatever route of prosecution is selected, it seems extremely unlikey under the current regime of Vladir Putin suspects will be extradicted to a court.