291 - Expediency Triumphs: Obligations be Damned

The Putin Caper

            Putin this week brazenly traveled from Moscow to Ulaanbaatar despite his status as an indicted war criminal. In early 2023, the International Criminal Court (ICC) declared him a serious violator of international human rights for abducting and then forcibly relocating Ukrainian children to Russia.  The ICC issued an arrest warrant.

            Mongolia is a signatory to the Rome Statute that established the ICC in 1998.  It is thus obligated under the Statute to arrest war criminals who appear in its territory and to deliver them to the ICC headquarters in The Hague for interrogation and trial. 

            But Mongolia did nothing of the kind. President Khurelsukh Ukhnaa instead warmly greeted the Russian dictator and paraded him in front of an impressive array of Mongol troops.

Likewise, when Sudan’s President Omar al-Bashir, another ICC-indicted war criminal, traveled to South Africa in 2015 for an African Union meeting, he was treated as a welcome guest and not arrested.  In his case, however, the South African Constitutional Court ruled that he should be arrested, Bashir fleeing back to Sudan with the careful assistance of South African President Jacob Zuma.

            Zuma was helping Bashir defy the ICC and Western policy makers, with no immediate or obvious gain for South Africa.  But in Mongolia’s case, being crassly expedient is understandable, and hardly for ideological reasons.  Once a Soviet satellite, with Communism arriving in 1924, Mongolia broke free in 1990 and has pursued a surprisingly strong agenda of independence ever since. In recent years it has been known for its pursuit of democracy and its desire not to be dominated either by Russia, its northern neighbor, or by China, its abutter to the south. Secretary of State Antony Blinken visited Ulaanbaatar in August.

            Nevertheless, stuck geographically between two superpowers, Mongolia understandably must be expedient.  Its 3.5 million people -- across vast pasturelands and steppes filled largely with sheep, goats, and camels -- are much less numerous that Russia’s 144 millions and China’s 1.4 billions.   Mongolia physically is more than twice the size of Texas and roughly the size of all of eastern and western Europe. But its neighbors are even larger and much more powerful.

Expediency is hence essential, especially when Mongolia relies exclusively on Russian supplies of oil and gas for its energy requirements.   Mongolia’s main imports include refined petroleum products, machinery, cars and trucks, and iron bars. China and Russia are the dominant providers, followed by Japan and South Korea. 

Mongolia’s exports go predominantly to China, but also to Switzerland and Singapore, followed by south Korea and Russia It most lucrative export per ounce is cashmere, but bigger total cash returns come from coal briquettes, copper, gold, and iron ore. Despite popularly voiced sentiments much to the contrary, Mongolia understandably cannot escape its proximity to and reliance upon Moscow.

            The heavy snows of last winter decimated the cattle, sheep, goats, and camels on which Mongolia relies for its supplies of meat. Moreover, after last winter’s animal destruction and death, Mongolia wants to be sure that its people stay warm this coming winter.  In turn, Putin wants to drive a new pipeline across Mongolia to China, the better to serve Chinese customers.

            Their mutual bargain will have dismayed Blinken and other high-ranking recent visitors to Ulaanbataar.  It may have troubled Mongolian electors, too.  But no figure will have been more dismayed than Genghis Khan, the thirteenth century ruler of the Mongolian empire,  much of China, much of what is now Russia, and an enormous domain extending from Vladivostok as far as Vienna, a city to which his legions laid siege.  Genghis Khan’s 131-foot-high equestrian statue impressively guards the northern highway entrance to Ulaanbaatar, a road that leads to Russia.

            Mongolia’s decision to be expedient, in its energy interests, further testifies to the weakness of both the Rome Statute and the ICC.  The Statute’s fundamental flaw is that it was created with no enforcing mechanism. Every indictment assumes that some nation-state will apprehend the indicted culprit and transport him/her to The Hague. But few jurisdictions, despite their solemn obligations, have been anxious to do the ICC’s bidding.

            Russia (and China and the U.S.) never signed the Rome Statute.  Nevertheless, Ukraine did and the ICC is allowed to pursue individuals from non-member states if an alleged crime was committed on the territory of a member state. 

            African states complain that the majority of those persons indicted over a quarter of a century have been Africans, including several warlords from the Democratic Republic of Congo. Current prosecutorial initiatives (including pursuit of Putin) seem to be anxious to pivot away from Africa.

            The ICC has not yet demonstrated an ability to deliver unassailable judicial results once a crime against humanity has been identified, one or more culprits have been apprehended by cooperating local authorities, and jurists have been instructed by ICC prosecutors on alleged offenses. Decision-making has been lumbering, delayed, and costly.

            In its first twenty-five years, the ICC has indicted fifty violators of human rights and issued forty-six arrest warrants, but only convicted and incarcerated ten of those individuals. Four persons were acquitted, three more died before they could be tried. Charges against two more, including now President William Ruto of Kenya, were dropped because the alleged culprits so intimidated potential witnesses that the ICC gave up.

            Sixteen of the indictees, including Putin, are on the lam, effectively avoiding interrogation and court appearances in The Hague. Bashir, however, was finally removed from office in 2019 by two of his subordinates and is kept in jail in what is left of Khartoum. His two subordinates subsequently fell out and are engaged in a fearsome fratricidal civil war that is ravaging Sudan. The ICC doubtless will add them to its list of war crimes perpetrators.

            The ICC is also investigating possible Israeli war crimes in Gaza and indicated that it was further interested in Putin’s aggression in Ukraine. 

Just this week, opponents of Uganda’s long-serving President Yoweri Museveni have filed a case against him before the ICC. The allegation is that he and his officials are committing human rights crimes against those who question the legitimacy of his enduring reign and a pending transfer of power to his son, a military commander.

The ICC was a well-conceived and much needed invention. Skilled prosecutors in its early days were able to provide salutary stabs at redemptive justice; they brought major perpetrators of crimes against humanity to book.  But now, in a bitterly divided world that lacks consensus about what is criminal, catching – much less convicting—someone like Putin (or even a Nicolas Maduro or a Museveni) is unlikely.

PS: This year’s special award for personal expediency must surely go to Robert Kennedy Jr. for his seamless embrace of everything his lineage and upbringing disdain.