A prosecutor has broad discretion in the exercise of her or his function. This is recognized in both common law countries in the principle of prosecutorial discretion and in civil law countries as the principle of opportunity. Indeed, even the European Court of Human Rights has acknowledged the principle of prosecutorial discretion in the case of Da Silva v the United Kingdom (5878/08). The European Court of Human Rights recognized that “[t]he decision not to prosecute any individual [… must not be …] due to any failings in the investigation or the [Prosecutor’s] tolerance of or collusion in unlawful acts. Rather, it [… must be …] due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.”
How prosecutorial discretion is exercised implicates the right to due process to which every individual is entitled. In addition, the way in which prosecutorial discretion is exercised may reflect on the process of which it is a part. A prosecutor exercises her or his discretion within the confines of both a legal and political process. The legal process controls whether the person who is the object of the exercise of discretion has been prejudiced by the direct action of the prosecutor. The political process controls whether this person has been prejudiced because the prosecutor’s exercise of discretion has drawn the very process into disrepute. While these considerations are judged by local courts in domestic contexts or occasionally by international (usually regional) courts where States have submitted their jurisdiction, the International Criminal Court (ICC) is judged in the Court of public opinion and by the political decisions of States. The recent actions by the ICC Prosecutor United Kingdom national Mr. Karim Khan and its ratification by the Court itself raises serious concerns about this Court and its Prosecutor’s exercise of prosecutorial discretion.
On 17 March 2023, the ICC Prosecutor Mr. Karim Khan issued an arrest warrant for Russian President Mr. Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova, the Russian Commissioner for Children’s Rights in the Office of the President. The warrants allege that these two persons are responsible for the war crimes of unlawful deportation of children out of the war zone in Ukraine to Russia in violation of articles 8(2)(a)(vii) of the Rome Statute and of unlawful transfer of children from occupied areas of Ukraine to the Russian in violation of article 8(2)(b)(viii) of the Rome Statute. Mr. Putin is charged with superior responsibility as President of Russia in violation of article 28(b) of the Rome Statute and Ms Lvova-Belova is charged with committing acts directly, jointly with others and/or through others in violation of article 25(3)(a) of the Rome Statute.
While ICC Prosecutor Mr. Khan is entitled to exercise prosecutorial discretion, his exercise of discretion in this matter raises serious concerns about the very legitimacy of the process of which he is a part. This is because of how he has exercised this discretion in the past, a matter which contrary to the self-serving pleas of former United Kingdom Prime Minister Mr. Tony Blair, is very much at issue. The exercise of prosecutorial discretion to go after Russians involved in the crime of moving children out of a war zone, while failing to pursue the leaders of the NATO-axis—that includes the UK and US among its Member States—despite the fact that they intentionally killed more than two million innocent Iraqis, Afghanis, Libyans, and Syrians, creates an appearance of bias and seriously jeopardizes the legitimacy of the ICC.
In Iraq, US President George W. Bush and British Prime Minister Tony Blair lied about weapons of mass destruction to create a false reason, that even if had been true could not have justified an act of aggression. As a result of the lies the US and a NATO-axis attacked Iraq with another round of shock and awe, targeting hospitals, schools, civilian infrastructure, even civilian bomb shelters killing hundreds of thousands of Iraqis with the initial use of force and killing more than a million to this day as a result of the conditions of life that the initial deadly onslaught was either intended to create or the aggressors should have known it would create.
While the US never counted the dead, reliable estimates based on both immediate deaths and increased infant and child mortality figures indicate that than at least a million Iraqis died as result of the US invasion of their country. Moreover, the US government as an occupying power intentionally orchestrated the unfair trials of Iraqi government officials, threatening and killing defense lawyers, withholding evidence, coercing judges to find guilty verdicts, and torturing defendants in efforts to extract confessions. It was the second time the US invaded Iraq, not satisfied with the tripling in infant and child mortality that resulted from its first invasion in 1992, before the ICC was created. To date the US-led invasion in which NATO States, including the UK, participated, has not resulted in any accountability for the leaders of these countries or any of the political or military officials that ordered the hideous actions against the people of Iraq. By failing to prosecute alleged perpetrators of acts that have been widely covered by the international media, the Office of the ICC Prosecutor Mr. Khan has silently defended the impunity of the aggressors. Unless the ICC Prosecutor now issues arrest warrants for Tony Blair and George W. Bush, among other NATO State leaders, for their crimes against humanity and war crimes against the people of Iraq, he has issued an insult like one not before seen to the people of Iraq by issuing the arrest warrants against Russians, nationals of a country that had in fact opposed the US-led aggression against the people of Iraq. The timing of the Russian arrest warrants raises serious questions about whether ICC Prosecutor Mr. Khan, was, contrary to his mandate, acting on instructions from his government or even the US government, whose support he needed to be elected ICC prosecutor. Whether there is any credence to the perception of bias that he has created is not as important as the fact that he has created this perception of bias at the expense of the integrity of the ICC.
In Afghanistan, Mr. Khan initial actions after becoming ICC prosecutor in June 2021 was to prioritize crimes by Islamic State and the Taliban. This was despite the fact that the Taliban against all odds, after having been removed from power by the unlawful US-led NATO-axis invasion of their country in 2001, had, in August 2021, fought their way back into power. Although the ICC had suspended its investigation of crimes committed by all parties, including the US in March 2020 at the request of the puppet government installed by the US government, the new Prosecutor decided to prioritize the Taliban and confirm the impunity of the leaders and military of the US-led NATO-axis that had invaded Afghanistan, thereby allowing impunity to the American political leaders and military for an unlawful invasion that killed an estimated more than one million innocent Afghanis.
The US-led NATO aggression against Afghanistan had been premised on that country’s alleged involvement in the actions of hijackers of several planes in the US that killed about 3000 people. The US did not count the victims of its aggression, but the US, UK and NATO barrage of the most advanced and deadly weapons against a people defending themselves with handguns, was so powerful that it could actually be seen to have changed the topography of Afghanistan from outer-space because the NATO-axis of countries had destroyed mountains with their bombardment. Most Afghanis were slaughtered from a distance from which they could not even see their executioners. And when Afghanis tried to defend themselves using their homemade means of protection the NATO-axis led by the US and UK, responded with cruise missiles and massive bombs. On 13 April 2017, for example, the US dropped an air-blast bomb or GBU-43/B Massive Ordnance Air Blast Bomb, described by the US military as the “Mother of All Bombs” and the largest nonnuclear ordnance ever used by the US in combat to target Afghan fighters using conventional weapons. The generals who ordered this bomb’s use bragged about it. The number of causalities from this one act is not known but likely everyone within the bomb’s extensive explosive range was killed. The number of abuses of international humanitarian law, war crimes, and crimes against humanity, is also likely astounding high given the limited data that has been reported publicly. Nevertheless, the ICC Prosecutor first was silent and now Mr. Khan has elected to pursue individuals who were defending their country from foreign invasion, instead of focusing on the serious and massive crimes of the aggressors that have killed more than a million Afghanis. And again, the Prosecutor acted against the leaders, in this case the de facto government that is recognized by international law, in a developing country, while allowing impunity to the aggressors.
In Libya the government of Colonel Muammar Muhammad Abu Minyar al-Gaddafi first ordered his military to remain in their barracks while US-inspired, paid-for, organized, and armed groups committed acts of violence throughout the country. When the Libyan army finally reacted the US-orchestrated destruction of Libya it was a fait accompli. It was too late to save the government and to prevent the country from falling into interminable chaos. The National Transitional Council of Libya estimates that as many as 30,000 Libyans lost their lives as a result of the US and NATO orchestrated destruction of the country. The number is likely much higher and the majority of deaths are undoubtedly attributable to NATO strikes and US and NATO provided weapons.
Again, the ICC prosecutor acted against the victims. The then-prosecutor issued arrest warrants against three members of the former regime after the Security Council referred the matter to the ICC. The arrest warrants targeted Libyans who had tried to defend their country from the foreign nations seeking to destroy the country. Mr. Khan has issued further arrest warrants against individuals acting against the UN-backed government that enjoys support from only the minority of Libyans and from the countries that led the aggression against the people of Libya. As one of his first actions, Mr. Khan told the Security Council that he would prioritize the situation in Libya, a country that has become a failed State due to outside interference, but which is home to lucrative oil wealth that UK, US, and other NATO allies’ corporations are already exploiting. In doing so, the arrest warrants that he has sought have focused on the members of the former regime, the Libyans who were defending the sovereign government of their country from a foreign inspired, financed, and organized violent attack. Once again, the Prosecutor is prioritizing the investigation and prosecution of victims of aggression, while turning a blind eye to the atrocities of the aggressors.
Similar to what he did in Iraq, the Prosecutor has chosen to ignore the acts of the aggressors against Syria’s territorial integrity and political independence. While to date the government in Syria has been able to resist the foreign intervention and to slowly claw back control of the country, the destruction to civilian infrastructure caused by the foreign intervention in Syria has created inhumane conditions of life and cost the life of countless Syrians. The attack on Syria by the same foreign powers that attacked Iraq, Afghanistan, and Libya has killed an estimated half million Syrians, including as many as 50,000 innocent women and children. While Russia, the US, the UK, and the NATO-axis have been involved in the armed conflict in Syria, Russia is the only one of these parties whose involvement was requested by the government of Syria. Nevertheless, UK lawyers have tried to encourage the ICC to investigate only crimes by officials of the government of Syria, a government trying to defend its sovereignty from foreign interference. The Prosecutor has apparently not even considered the prosecution of NATO-axis leaders or military.
These four examples stand in stark contrast to Prosecutor’s actions as concerns Ukraine. In Ukraine the Office of the High Commissioner for Human Rights estimates that about 8000 civilians have been killed and Russian TV has estimated that about 160,000 Ukrainian soldiers have been killed. The number of Ukrainian children killed is about 500 to date according to Ukrainian sources. These figures dwarf the millions of innocent people, including hundreds of thousands of children, killed due to the US, UK, and NATO allies’ aggression against the people of Iraq, Afghanistan, Libya, and Syria.
In Ukraine, NATO States have taken their assault on the rule of international criminal law to new and more sophisticated heights. Instead of directly confronting a peer, Russia, a country as wealthy as and more powerful than many NATO countries, the NATO-axis has used a compliance proxy to fight its battle. The NATO-axis found a comedian-President who has little understanding of international law or politics, but welcomed the spotlight and personal wealth compliance with the NATO-axis could bring him. There was also a NATO Secretary-General who to the certain distress of his humanitarian father’s legacy, was willing to seek attention through virtually any means possible with little sense of a moral compass or respect for the rule of international law.
NATO and several of its Member States, most notably the US, had offered false assurances while planning for a military assault on Russia. They continued this path for decades, starting almost immediately after the collapse of the Soviet Union. For some it was an ideological war, for others merely a sense of greed and hatred for a social model that with all its flaws stood for cooperation and the good of the community, over competition and individualism. When the comedian-President of Ukraine and a NATO-axis were both willing to ignore the rule of international law and offer compliant support and launching pads for war, Russia responded in anticipation. It is true that Russia may have fallen into the trap that was set for them, but they did so begrudgingly and not with the same enthusiasm of the NATO-axis and its puppets have waged their proxy war.
The arrest warrant issued by the ICC Prosecutor appears to be part of the overall scheme of the NATO-axis. It is not issued for killings or torture or for any of the many atrocities NATO countries and legions of their officials perpetrated in Iraq, Afghanistan, Libya, or Syria. The arrest warrant against the Russian President and another senior Russian official was for the forced transfer of children from war zones in Ukraine to Russian territory. It sends the undeniable message from the ICC Prosecutor that the forced transfer of European children, indeed, a hideous crime if committed with the intention to harm the children, is one that is more significant than the killing of millions of innocent Arabs, including hundreds of thousands of Arab children. Moreover, although the US, UK and their NATO allies conscientiously used weapons the proportionality of which they could not control, Russia claims to be transferring the children out of harm way, something that is in fact encouraged by international humanitarian law. Despite western media efforts to paint the Russian action as committed with malintent in a civil war, revolution, or uprising, in fact, the Ukraine conflict, as are all the abovementioned armed conflicts, is an international armed conflicts in which combatants have a duty to protect civilians under international humanitarian law or the laws of war. This duty prohibits attacks on civilians or civilian infrastructure, a prohibition that no foreign State party to any of the above described armed conflicts has respected and one that was violated in the armed conflicts involving the territory and people of Iraq, Afghanistan, Libya, and Syria to a greater extent that it has been by Russia in Ukraine. Yet the ICC Prosecutor has ignored the intentional and wanton killings of millions and issued arrest warrants for actions that are not even clearly contrary to international criminal law. By issuing these arrest warrants the ICC Prosecutor seems to be signaling his support for the actions of the NATO States, while once again condemning a victim of aggression.
In light of the numerous serious and massive international crimes that have been committed by senior politicians and military personnel of the States of the NATO-axis, the decision to issue an arrest warrant against Russian President Vladimir Putin is a notable insult to international criminal. It is particularly insulting as it comes as the world remembers the twentieth anniversary of the United States’ aggression against the people of Iraq that left over a million innocent Iraqis dead.
It is an insult to international justice because International Criminal Court (ICC) Prosecutor Mr. Karim Khan, a British national, has ignored acts of aggression against the people of Iraq, the people of Afghanistan, the people of Libya, the people of Syria, just to name a few, that killed an estimated more than two million innocent civilians. Equally suspicious is the fact that Mr. Khan exercised his prosecutorial discretion to prosecute the leader of a country who has taken much more effort to avoid civilian casualties than either his own Prime Minister Tony Blair, or the UK’s ally, US President George Bush.
This is not to say that Mr. Khan was not legally, procedurally justified in issuing the arrest warrant, but like his predecessors who issued arrest warrants almost exclusively against officials from developing countries, he has acted in manner that seriously injures the credibility, independence, impartiality and, indeed, integrity of the ICC. The ICC Prosecutor must exercise his prosecutorial discretion in manner that does not raise significant concerns about prosecutorial bias. In this case, he appears to have failed to exercise his prosecutorial discretion in an unbiased manner by ignoring crimes of greater gravity and seeking to prosecute crimes of lesser gravity. In doing so he has undermined the legitimacy of the very Court for which he works.
ICC Prosecutor Mr. Khan appears willing to sacrifice the integrity of international criminal justice to satisfy the political needs of those with whom he most identifies irrespective of their own international crimes. At the very least this should lead to the Mr. Khan relinquishing his function as a step towards restoring the ICC’s integrity until his decision can be thoroughly investigated. International criminal justice cannot afford to allow those responsible for its administration to act with apparent bias. An ICC Prosecutor from a country that is part of the NATO-axis, who issues an arrest warrant for the crime of removing children from a war zone, while ignoring the slaughter of millions of innocent people by political and military officials of the NATO-axis, issues an astounding insult to international criminal justice.
Curtis F.J. Doebbler is Research Professor of Law, University Makeni, Sierra Leone, and The Law Office of Dr Curtis FJ Doebbler.