Speaking of the current Russia-Ukraine crisis, here is an interesting but less visible international legal dimension to the story.

Ukraine used to be part of the Soviet Union, during which time it had possessed huge stockpile of nuclear weapons arsenal – actually the third largest stockpile in the world at the time. Russia would not have ventured into Crimea today had Ukraine maintained possession of those nuclear weapons. What happened in 1994 was dramatic, and a bit embarrassing for Ukraine. At the end of the Cold War Ukraine agreed to an international deal that would deprive it of the entire nuclear weapon stockpile in its territory, mostly being transferred to Russia. In exchange, Russia, the US, and UK signed a binding pledge, the so-called Budapest Memorandum, guaranteeing the security of Ukraine. Now, what is interesting about this Memorandum is that it actually contained zero added-value as it offered Ukraine nothing other than what general international law already provided. Let me walk you through all the five articles of this Memorandum (yes it contained only five articles).

Article one states that Russia, USA and UK reaffirm their commitment to ‘to respect the independence and sovereignty and the existing borders of Ukraine’. Why is this promise useless? Because article 2(4) of the UN Charter, which has since become customary international law and even arguably a peremptory norm, already prohibits states from using ‘the threat or use of force against the territorial integrity or political independence of any state.’ Respecting the territory, independence and sovereignty of Ukraine is a customary international rule, and no additional treaty is needed for that.

Article two of the Memorandum basically repeats the above point, stating that the three powerful states will ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine’, and adds that ‘none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations.’ This article seems to waste two clauses to say one and the same thing: what is the difference between ‘refraining from threatening or attacking’ another country and promising one’s ‘weapons won’t be used against’ such other country?  Or the difference between saying ‘I will not attack you’ and ‘none of my equipment will be used to attack you’?  One may say the first formulation concerns the actions of the attacker only while the later formulation creates responsibility on such party for the consequences of its weapons, by whomever the weapons may be used. That is to say, the first clause guarantees Russia, USA, and UK wont attack Ukraine, while the subsequent clause guarantees that the nuclear weapons of these states won’t be used by themselves or any other state against Ukraine. In either case, in as long as the Memorandum only envisages scenarios where the three states would have some control over the use of their nuclear weapons, either by themselves or through proxies, the general international law prohibition on the treat or use of force adequately covers it. A state would be held through the rules of state responsibility even if it uses other states (or non-state actors for that matter) as its proxy to attack another state. In sum, in article two of the Memorandum, Russia, USA, and UK promised not to attack Ukraine – but international law would not have allowed them to even if they had not made that promise.

Article three of the Memorandum guarantees that Russia, USA, and UK would ‘refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty.’ This seems to offer something distinct. Although unacceptable, there is no concrete rule under international law that prohibits the use of economic coercion against states (during the preparation of the UN Charter economic coercion was proposed to be prohibited together with the threat or use of force, but the proposal was rejected). However, the 1975 Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accords) to which Ukraine and the three powerful states are members already prohibits the use of economic coercion against states. Article three of the Budapest Memorandum, therefore, is simply redundant.

Abreha Z. Mesele has written (ICC and African Union: Selective Justice?) an informative piece on the recently inflamed ICC-African Union altercation; or rather African Union’s ringing condemnations of the practice of ICC, calling it big-powers’ instrument of ‘pummelling the weak ones’.  In this piece I would like to offer some of my views on the issue, by way of a response to Abreha’s paper. Abreha has accomplished the task of laying out the essential introductory ground-work, and so I will refrain from any redundancy and delve straight into discussing the issues that I think are overlooked or misrepresented in the general discussion on the topic and in Abreha’s piece specifically.

I would like to discuss three important (loosely interrelated) points. First, I dispel the suggestion that the ICC is primarily funded by powerful states (read: the US) and to that extent serves as an instrument of their desires. Second, I will argue that powerful states would still be able to shield themselves from the ICC by using the powers of the Security Council, even if the Statute of the ICC had not bestowed upon the Security Council powers to defer cases from consideration by the ICC. Thirdly, I present two possible interpretations to resolve the apparent contradiction between article 27 (waiver of immunity) and article 98 (requirement of consent in waiving immunity) of the ICC Statute that Abreha pointed at. I will end my discussion with a rather pessimistic but practicable note (as opposed to the idealist but paralyzing suggestions we often hear) on the way forward regarding the ICC-AU ‘crisis’.

ICC Financing and Big-Power Instrumentality

Misperceptions about the financing of the ICC are one of the more important factors influencing attitudes toward the practice of the court. Contrary to widely held assumption (also subscribed to by Abreha), the ICC is not funded by ‘big/super powers’ (which is mainly a code word for ‘the US’), and to that extent the ICC is not an instrument at the disposal of the will of the US. The ICC is funded mainly by the regular contributions of all of its 122 member states, although one could say the bigger powers contribute more as their contribution follows what is called the ‘assessed contributions’ formula of the UN. The US in particular is not a party to the ICC Statute and therefore does not contribute to the court’s budget. There is a possibility for non-members to contribute to the funding of the ICC voluntarily, but the United States has never volunteered. In fact, a law in the United States expressly prohibits the government from making contributions to the ICC. The other circumstance the US would be said to cover the costs of the court is when the Security Council makes a referral to the ICC. In such cases, the UN itself covers the costs of the cases and therefore the US would indirectly bear a portion of the costs as a member of the UN. But such costs are incurred from the regular budget of the United Nations to which the United States and all other nations contribute in lump sum, and therefore no state wields particular dominance over the specific programmes that such general contributions accomplish. All member states of the ICC, including the big Western and other states, contribute to its meagre budget of around 100 million Euros a year. The biggest financial contributor to the ICC is in fact Japan, contributing not more than 20 per cent of the court’s annual budget; I guess that says it all about the relative insignificance of a financing-based critique of ‘big-power instrumentality’ against the ICC.

Big-Powers and the ICC: the Powers of the Security Council