October 2012 Monthly Forecast

Posted 28 September 2012
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THEMATIC ISSUES

Rule of Law

Expected Council Action

In October, the Council will hold an open debate on the role of the International Criminal Court (ICC) and its relation to the Council under the agenda item entitled “The promotion and strengthening of the rule of law in the maintenance of international peace and security”.

The open debate will be presided by the Foreign Minister of Guatemala, Harold Caballeros, and the Secretary-General may brief the Council.

No outcome is expected.

Background

In recent years, rule of law and justice issues have gained prominence in the Council, becoming part of mainstream Council discussion and action and at times influencing the design of its operations in the field. 

The Council held its first thematic debate on the rule of law in 2003, followed by debates in 2004, 2006 and 2010. The last open debate was on 19 January 2012. In a presidential statement (S/PRST/2012/1) adopted after the debate, the Council reaffirmed its strong opposition to impunity for serious violations of international humanitarian law and human rights law.

On 17 July 1998, 120 states signed the Rome Statute, establishing the ICC as a permanent court to help fight impunity for the crimes of highest concern to the international community. The ICC was given jurisdiction over genocide, war crimes, crimes against humanity and aggression, while elaborating on the specifics of each category of offences. As of September 2012, 121 states have ratified the Rome Statute, which came into force on 1 July 2002, and are subject to its jurisdiction (China, Russia and the US have not ratified the Rome Statute).

The Rome Statute granted the Security Council unique powers to refer situations and place them under the jurisdiction of the Court, even in a case concerning a non-State Party. Article 13(b) of the Statute allows the ICC to exercise its jurisdiction regarding the aforementioned crimes when the Council, acting under Chapter VII, refers a situation to the Prosecutor of the Court. Article 16 allows the Council in exceptional circumstances to pass a resolution under Chapter VII to defer an ICC investigation or prosecution for a renewable period of 12 months.

The Council has referred two situations to the ICC. On 31 March 2005, the­ Council adopted resolution 1593, with four abstentions (Algeria, Brazil, China and the US), referring the situation in Darfur to the ICC and asking the Prosecutor to report to the Council every six months. On 26 February 2011, the Council unanimously adopted resolution 1970, referring the situation in Libya since 15 February to the ICC. Resolution 1970 also invites the Prosecutor to address the Council within two months—and every six months thereafter—on actions taken pursuant to the resolution.

Beyond the periodic reports by the Prosecutor, and a 16 June 2008 presidential statement on Darfur (S/PRST/2008/21) and a 15 June 2012 press statement (SC/10674) on Libya, the Council has not actively cooperated with the ICC on the two referrals. In fact, the few instances of Council cooperation with the ICC are related to situations that were initiated by the situation countries themselves or by the Prosecutor, under Articles 13(a) and 14 and 13(c) and 15 of the Statute, respectively, and therefore independently of the Council. The most recent example was the 29 November 2011 decision by the 1572 Côte d’Ivoire Sanctions Committee to lift its travel ban on former President Laurent Gbagbo to enable his transfer to ICC custody in The Hague.

Although Kenya and Sudan, and the AU Assembly through a number of decisions starting with decision 221 (XII) of 3 February 2009, have asked the Council to invoke Article 16 of the Rome Statute to defer situations currently under ICC jurisdiction, the Council has not acted on these requests thus far.

Key Issues

An issue for the Council is to develop a systematic approach towards its relationship with the ICC especially in relation to the situations it has referred under Article 13(b).

A related issue is to better understand how the Article 13(b) and 16 prerogatives given to the Council under the Rome Statute can be best utilised in country-specific situations on the Council’s agenda.

Options

The Council’s options include: 

  • issuing a press statement (or, less likely, a formal outcome document) expressing the Council’s support for the ICC’s work and calling for future cooperation between the two in promoting the rule of law, peace and security;
  • requesting that the Secretary-General address the Council’s relationship with the ICC in his report on the rule of law due in January 2013; or
  • taking no action at this time.

Options for Council members that are also States Parties to the Rome Statute include:

  • establishing a “Rome Statute Caucus” to ensure that Council decisions and actions are not inimical to the Rome Statute, as were some of the provisions inserted into resolutions 1593 and 1970, and to encourage future cooperation between the Council and the ICC on the two referrals;
  • taking account of the fact that the 1591 Sudan Sanctions Committee bases its targeted designations on the information provided by “relevant sources”, exploring opportunities for the Committee and its Panel of Experts to be briefed by the ICC Prosecutor; and
  • exploring the possibilities for the Committee to impose targeted sanctions on those deemed by the ICC to be most responsible for the crimes committed in Darfur, thereby making the current list of ICC indictees and the consolidated list of the 1591 Committee less asymmetrical and enhancing the deterrent effect of ICC arrest warrants.
Council and Wider Dynamics

Guatemala sees the open debate as an opportunity to consider the relationship between the Council and the ICC holistically, beyond a country-specific situation. The objective of this approach would be, first, to explore how the ICC can assist the Council as a preventive tool to uphold the rule of law, accountability and peace and security and, second, to allow the Council to consider future improvements in the relationship, in light of the decade since the establishment of the ICC. 

Though most observers view Council referrals as a generally positive development, they have also been a cause for criticism as the pertinent resolutions contain provisions that are contrary to the integrity of the Rome Statute.

In both referrals, the Council excluded nationals of non-State Parties to the ICC from the jurisdiction of the Court or a domestic court in another country, even for crimes committed within Darfur or Libya. The resolutions also recused the UN from any financial obligations regarding the referrals, notwithstanding Article 115(b) of the Rome Statute which provides for UN funding for Council referrals, subject to approval by the General Assembly.

Some view these elements as undermining the rule of law by infringing on the work of the ICC and undermining the perception of the Court as an independent legal body, free from political considerations. Comments to this effect were voiced, for example, by Professor Jose Alvarez of New York University during a 4 September meeting of the Council’s Working Group on Conflict Prevention and Resolution in Africa. A non-paper circulated to UN members on 15 July 2011 by Liechtenstein called for the UN to fund previous referrals and for the Council to avoid its practice of placing all resulting financial obligations on the ICC in the future.

The open debate will provide Council members and other participants with an opportunity to address these concerns.

UN Documents on Rule of Law
Security Council Resolutions  
26 February 2011 S/RES/1970 This resolution referred the situation in Libya to the ICC, imposed an arms embargo and targeted sanctions (assets freeze and travel ban), and establised a sanctions commitee .
31 March 2005 S/RES/1593 This resolution referred the situation in Darfur to the International Criminal Court.
Security Council Presidential Statement  
19 January 2012 S/PRST/2012/1 The Council adopted a statement on justice and the rule of law as “an indispensable element for peaceful coexistence and the prevention of armed conflict.”
Useful Additional Resources

Liechtenstein non-paper (15 July 2011) on the financing of Security Council referrals.

The Rome Statute of the ICC.