“This One Goes To Eleven”: The ICC and the Security Council

The unprecedented rejection by Saudi Arabia of its elected seat on the Security Council in October, 2013, ostensibly in protest of the Council’s perceived failures in the Middle East (citing Syria, Palestine, and the failure to free the Middle East of weapons of mass destruction), stunned the diplomatic world.  Less so the General Assembly’s near-consensus election last Friday of Jordan to fill the vacated seat.  Jordan will join four other newcomers to the Council—Chad, Nigeria, Lithuania, and Chile—on January 1, 2014, and another five previously elected members—Argentina, Australia, Luxembourg, Republic of Korea, and Rwanda—whose terms will end in December of next year (elected members serve over-lapping two-year terms).  Jordan will also assume the presidency in January 2014 (the position rotates monthly in alphabetical order).

What is significant about the Council’s 2014 configuration?  A record 11 Security Council members will be members of the International Criminal Court (ICC).   The four non-ICC members are: the United States, China, Russia (permanent members), and Rwanda.  In the past, roughly 7-9 Security Council members have been ICC members at any given time—a number that remained remarkably stable since the ICC gained ratifications.

Whither The Relationship Between the Court and the Council?

It remains to be seen whether this super-majority of ICC members on the Council will impact the relationship between the Security Council and the ICC, a subject of scholarship and debate ever since the Council referred the Darfur situation to the Court in 2005 with Resolution 1593.  But, focused diplomatic and academic discussion dedicated to considering, and improving upon, this complex relationship emerged as a sort of zeitgeist in 2012.  (Sample reports from these gatherings are available here and here, here).

For example, when Guatemala held the Council Presidency in October 2012, it hosted the first-ever open debate on the topic of “Peace & Justice with a Special Focus on the Role of the ICC”, with the goal of exploring:

how the Court, as a tool of preventive diplomacy, can assist the Council in carrying out its mandate to uphold the rule of law, maintain peace and security, and combat impunity while ensuring accountability for mass atrocities. It would also examine how the relationship between the two bodies had developed over the past decade and to consider the way forward in strengthening their linkages.

The event featured remarks to the Council by Judge Sang-Hyun Song (Korea), the President of the ICC (his first), as well as by U.N. Secretary General Ban Ki Moon, Phasiko Mochochoko (the head of the Jurisdiction, Complementarity, and Cooperation Division of the Office of the Prosecutor), and the President of the Assembly of States Parties, Tiina Intelman (Estonia).

In addition to this formal Council session, there have been a number of diplomatic and academic sessions dedicated to improving the relationship between these bodies, with most of the criticism aimed at the Council for its failure to better support the work of the Court in terms of: mandating cooperation, imposing sanctions, enabling UN funding for the Court, and limiting the Court’s jurisdiction.  The Council has also been criticized for not taking more robust action on Syria, including by referring it to the Court.  It should be noted that these criticisms are not just leveled at the P-3 who are not members of the ICC (China, Russia, and the United States); rather, ICC states parties are equally, if not more often, on the receiving end of such criticism on the theory that they “forget” that they are ICC members when they are elected to the Council.

Cooperation With Court Orders

The Council has been urged to demand more robust cooperation with respect to ICC warrants and other orders not only from Sudan and Libya but also from all UN member states.  It is axiomatic that the ICC Statute, as a multilateral treaty, only binds states that have ratified it.  These states are under a general duty to cooperate with the Court by virtue of Article 86, which states:

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

When the Council referred the Darfur and Libya situations to the Court, it echoed the language of Article 86 and imposed duties of full cooperation on the governments of the two territorial states (and on “all other parties to the conflict” in the Darfur resolution).  All other member states, by contrast, were merely urged to cooperate.  Resolution 1970 thus states that the Council decided that:

the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor (emphasis mine)…

Besides the two situation countries, only ICC Member states are under any express obligation to execute the ICC’s arrest warrants, and this is by virtue of their ratification of the Rome Treaty rather than via the UN Charter. 

The Council has also not responded to findings of non-cooperation from the Court, particular with respect to the travel of ICC defendants to ICC member states and elsewhere.  Indeed, the Council has reacted with virtual silence to findings non-cooperation with respect to Sudan, Malawi, Kenya, Djibouti, Central African Republic, and Chad, although the United States, for one, has formally called for more “follow-up” by the Council with respect to the Sudan situation.  By way of comparison, the Council was much more aggressive in addressing the need to capture fugitives from the International Criminal Tribunal for the Former Yugoslavia (ICTY).  In Resolution 1207 (1998), for example, the Council:

Condemn[ed] the failure to date of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the Tribunal [ICTY] against the three individuals […] and demand[ed] the immediate and unconditional execution of those arrest warrants, including the transfer to the custody of the Tribunal of those individuals.

The untapped potential for peacekeeping mandates to contribute to the effectuation of ICC warrants was also a frequent refrain in these discussions—one area where there has been some movement, as we’ve discussed here.

Imposing Sanctions

In addition, the Council has been criticized for not imposing more robust sanctions on ICC defendants.  Security Council Resolutions 1591 and 1672 (among others) established a UN Sanctions Committee that imposed a range of sanctions on other Sudanese actors (including both travel bans and assets freezes).  Remarkably, none of these sanctions applies to any of the ICC defendants.  The Panel of Experts of the Sudan Sanctions Committee has recommended the inclusion of President Al-Bashir in these programs; members of the Council have blocked his addition.  Were the Council to freeze assets of these defendants, these funds could be used to pay reparations to victims and to cover legal fees of defendants who claim indigency, thus alleviating the financial strain on the Court posed by Council referrals.

Referral Limitations

In addition to this perceived lack of follow up by the Council in support of its referrals, states and academics have called for Council to eliminate language contained in Security Council referral resolutions barring United Nations funding of referral cases and exempting nationals from non-ICC member states from the ICC’s jurisdiction.  The funding language states that the Council:

Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily…

The jurisdictional exemption language notes that the Council decided:

that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State…

Both of these limitations are in tension with provisions of the ICC-UN Relationship Agreement as well as the ICC Statute, which states at Article 115(b) that the

expenses of the Court … shall be provided by … the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council

The Statute also provides that the Court has jurisdiction over any nationals who commit crimes on the territory a referred situation (Article 13(b)). 

Since the Darfur referral, the Council has received seventeen briefings by the Office of the Prosecutor.  The OTP’s interventions have conveyed mounting frustration at the lack of progress in gaining custody of Sudanese fugitives and the “inaction and paralysis” within the Council.  Justice Louise Arbour, former Chief Prosecutor of the ICTY and now head of the International Crisis Group, has argued for greater independence of the Court vis-à-vis the Security Council on the ground that referrals in the absence of follow up have actually undermined the ICC and the cause of international justice. 

The Use of the Veto in Atrocity Situations

The so-called “Small Five” proposal (issued by Costas Riva, Jordan, Liechtenstein, Singapore, and Switzerland) is also a product of this zeitgeist.  This proposal, which accompanied a raft of suggestions for reforming the Council’s working methods, sought to have the permanent members of the Council pledge to refrain from using their veto to block collective action when crimes within the jurisdiction of the ICC are being committed.  The situation in Syria was salient in this regard.  The S5 ultimately withdrew their draft General Assembly resolution, entitled “Enhancing the Accountability, Transparency and Effectiveness of the Security Council,” after the United Nations Legal Counsel and Under-Secretary-General for Legal Affairs, Patricia O’Brien (Ireland), advised that the resolution concerned “important questions” that would likely require a two-thirds majority vote of the General Assembly to pass rather than procedural and other questions, which are determined by a simple majority vote.  France has since taken up the proposal in the Council, which has also been included as part of a new Security Council-reform initiative known as Accountability, Coherence and Transparency (ACT).  Similarly, the European Parliament issued a resolution calling for a Council Code of Conduct in the face of atrocity crimes.     

Conclusion

No doubt, these initiatives will have greater traction in next year’s Security Council, especially given that many of these 11 ICC member states are already on record as being supportive.  Stay tuned… 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).