For its mandate to endure, the ICC must exercise prudence and tact

This was unprecedented. Indicting the leader of a great power (well, even if it's a rather jaded one) was totally unexpected. The International Criminal Court, by formally charging Russia's President Vladimir Putin with war crimes in Ukraine, was either being very courageous. Or very foolhardy.

The particular indictment cites the "deportation" of thousands of children from Russian-occupied regions of Ukraine to Russia. The Kremlin's only explanation has been that the kids were "transferred" to Russia because they were in a war zone and their parents were resisting calls to evacuate.

That aside, there are a number of problems with this indictment. It's a pie-in-the-sky kind of thing. Meaning it is going to be virtually impossible to effect.

Basically, Russia is not a signatory to the Rome Statute that created the ICC, and it's going to use that to argue the country is outside the Court's jurisdiction. (Sudan too never ratified the Rome Statute, but that did not stop the ICC from charging ex-President Omar al-Bashir for crimes against humanity).

As was to be expected, the Kremlin contemptuously dismissed Putin's indictment as "legally void." Russia's Commissioner for Children's Rights, Maria Lvova-Belova, has been indicted as well.

Let's be realistic. Nobody should wait and expect Putin to ever stand on the dock at the Hague-based ICC. That will never happen.

Still, the indictment is a major propaganda score for Ukraine, which has been calling for precisely such action since last year, citing Russian war crimes. Plus the indictment will forever leave a stain on Putin's name as somebody who fell afoul of a legally constituted global Court that was set up to check the worst of international crimes.

Contrary to what many might believe, the US government is not exactly cheering this Putin indictment. When asked about it by a journalist, President Joe Biden snapped: "Russia is outside the court's jurisdiction."

As a matter of fact the US has long been suspicious of the ICC. Even if it doesn't openly oppose it, it doesn't embrace it wholeheartedly. Like Russia, the US isn't a party to the ICC Statute (it signed then withdrew) nor does it recognise its jurisdiction over its citizens.

I think from the point of view of the US government, it looks at the Putin indictment as setting a bad precedent. The US has no problem when the ICC runs all over the place indicting Third World despots.

But when the Court seeks to do the same with leaders of great powers, those powers consider it is overstepping its bounds. I remember it was during the George W. Bush administration when the US stated categorically that it would not tolerate the ICC indicting even the lowest-level American soldier for atrocities committed in the Iraq war which Bush launched in 2003. "We will come to The Hague and dismantle you," warned Donald Rumsfeld, the US Defence Secretary at the time.

Western Imperialism

The Putin indictment fuels the old argument that the ICC is a tool of Western imperialism. One wishes the Court had come out just as robustly to indict Bush and Britain's Tony Blair for war crimes over their cruel invasion of Iraq. It can be argued that there are understandable security, geopolitical and strategic reasons for Russia invading Ukraine, a neighbour, to stop her from contemplating joining the US-led NATO military alliance.

However, there was nothing redeeming about the 2003 Bush-Blair stampede into Iraq. It was totally unnecessary. The claim that Iraqi leader Saddam Hussein had amassed weapons of mass destruction turned out to be lies. Sad, because hundreds of thousands of innocent Iraqi lives were lost in the ensuing carnage.

Nevertheless I very much support the ICC's mandate. The fact that it focuses on the Third World does not faze me. We live in the Third World where petty dictators and numerous aspiring ones abound. They have messed up people's lives. The ICC is a useful tool to check their often bloody impulses. Without the Court the world would be the loser.

The trick for the ICC is to know who to mess with and who not to. Sounds like a case of condoning double standards? Yes, I concede to that. But as the evil character called Scar in the hugely successful animated movie franchise "Lion King" would say: "Life is not fair, is it?" We live in a world of inequality and power imbalances.

Truth is, Russia can make life very unpleasant for the ICC. The Court's prosecutor and the judges, like those we have here in Kenya, imagine they operate outside the orbit of reality. Russia has a history of doing some very ruthless things when she's angry.

They could conceivably become targets of that country's Federal Security Service - the successor to the feared KGB. (Putin was a KGB officer for 16 years before launching his political career). Recall the nasty incident in 2006 in London when an exiled Russian dissident was poisoned with a substance - polonium - nobody had ever heard of before?

Investigators concluded that Russian intelligence agents were responsible. We live in a rough world, where a Turkish anarchist who attempted to kill the late Pope John Paul II was suspected of being unknowingly used by the KGB.

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Predictably, UDAists are stridently dismissing last Monday's demonstrations as "Luo protests." Tribalising national grievances is so wrong. So, should we condemn the Mau Mau uprising because it was a "Kikuyu thing?" Should we dismiss the US civil rights struggle because it was an "African-American movement?"

Wherever there's a problem within Kenya, it becomes a Kenyan problem wherever it manifests itself. Shouldn't we then reply to this sort of profiling by pronouncing the current government as an exclusively Central Kenya and Rift Valley affair, which it is?

[email protected]; @GitauWarigi